Gutierrez v. Ryan

In
January 2012, Petitioner Augustine Villanueva Gutierrez pled
guilty to aggravated assault and received a sixteen-year
prison term. Gutierrez now claims he received ineffective
assistance of counsel during the plea proceedings, the trial
court and prosecutor lied about the evidence against him to
coerce him to plead guilty, and he received ineffective
assistance of counsel during post-conviction relief
proceedings. Magistrate Judge Eileen S. Willett issued a
Report and Recommendation (“R&R”) concluding
Gutierrez was not entitled to relief under any of these
theories. Gutierrez filed objections but, while they raise
potentially valid points about discrete portions of the
R&R, he is not entitled to relief.

BACKGROUND

In
February 2010, Gutierrez turned in front of another vehicle,
causing the other vehicle to hit Gutierrez's vehicle. A
passenger in the other vehicle suffered a broken arm as a
result. At the time of the collision Gutierrez's blood
alcohol level was well above the legal limit. Gutierrez was
charged in state court with aggravated assault based on the
injury to the passenger in the other vehicle.

In
January 2012, Gutierrez agreed to plead guilty to the
aggravated assault charge in exchange for a sixteen-year
sentence. Under the applicable statutes, Gutierrez's
actions qualified as aggravated assault because he recklessly
caused physical injury to another person using a
“deadly weapon or dangerous instrument, ”
i.e. his vehicle. A.R.S. §§ 13-1203;
13-1204(A)(2). At the sentencing, Gutierrez was asked
“Did you make a reckless turn using a car, a dangerous
instrument, that caused a broken arm to a [passenger in the
other vehicle]?” Gutierrez responded “Yes, your
honor.” (Doc. 18-1 at 13). Gutierrez was then sentenced
to sixteen years.

Shortly
after his sentencing, Gutierrez filed a petition for
post-conviction relief (“PCR petition”).
According to his PCR petition, Gutierrez did not remember the
collision and did not know how it happened. But after he was
sentenced, Gutierrez learned the other vehicle had hit his
vehicle. Gutierrez argued this information was vitally
important such that he should have been informed of it prior
to pleading guilty. More particularly, Gutierrez claimed his
attorney had provided ineffective assistance of counsel by
failing to provide him with documents indicating the true
circumstances of the collision. The trial court denied the
PCR petition, finding Gutierrez had not established his
counsel's performance had been deficient nor had
Gutierrez established he suffered any prejudice as a result
of his counsel's performance. Gutierrez then filed a
petition for review with the Arizona Court of Appeals.

The
petition for review again focused on the alleged failure by
Gutierrez's counsel to turn over documents regarding the
circumstances of the collision. Gutierrez explained his
counsel had been ineffective because, at the time of his
guilty plea, Gutierrez was confused about “who hit
who” and if he had known the other vehicle had hit his,
he would not have plead guilty. (Doc. 14 at 32). Gutierrez
further claimed the actual circumstances of the collision
meant he could not have been guilty of aggravated assault.
According to Gutierrez, the only possible crimes he committed
were “failure to yield to the right of away . . . and
driving under the influence.” (Doc. 14 at 33). The
Arizona Court of Appeals granted review but denied relief.

The
Arizona Court of Appeals' decision described Gutierrez as
asserting three theories of ineffective assistance of
counsel. The first two theories were that counsel had not
obtained the police report and that counsel lied to Gutierrez
about the circumstances of the collision. The court of
appeals found Gutierrez had not established he was prejudiced
by these alleged errors because the precise circumstances of
the collision were not material to Gutierrez's guilt.
That is, the fact that Gutierrez turned in front of the other
vehicle and caused the collision was a sufficient basis for
an aggravated assault conviction. The third theory of
ineffective assistance of counsel was counsel's advice
not to accept a plea deal for 7.5 years of prison time. The
court of appeals concluded this theory had no basis in fact
because no such plea offer was ever made. Gutierrez did not
seek review by the Arizona Supreme Court.

Approximately
four months after the court of appeals' decision,
Gutierrez filed his federal petition. The Court construed his
petition as presenting four claims: 1) ineffective assistance
of counsel during the plea negotiations; 2) the trial court
coerced Gutierrez into pleading guilty by lying about the
evidence against him; 3) the prosecutor coerced Gutierrez
into pleading guilty by lying about the evidence against him;
and 4) Gutierrez's post-conviction relief attorney was
ineffective by failing to assert the second and third grounds
during the post-conviction review process. (Doc. 7). In
responding to the petition, Respondents conceded the first
claim of ineffective assistance of counsel should be reviewed
on the merits but stated Gutierrez is not entitled to relief.
Respondents argued the other three claims were not properly
before the Court. The R&R agrees with Respondents.
Gutierrez filed objections which are difficult to follow and
do not establish any material error in the R&R's
conclusions.

ANALYSIS

The
parties agree Gutierrez's first claim must be reviewed on
the merits. That claim is that Gutierrez received ineffective
assistance of counsel during the plea bargaining process. The
undisputed facts are that Gutierrez turned in front of the
other vehicle and that vehicle then hit Gutierrez's.
According to Gutierrez, his counsel provided ineffective
assistance by not arguing these facts were insufficient to
establish aggravated assault. Gutierrez also claims his
counsel was ineffective by failing to provide Gutierrez with
the documents explaining the circumstances of the collision
and then allowing Gutierrez to plead guilty. The problem for
Gutierrez is that his arguments are based on a
misunderstanding of Arizona's applicable aggravated
assault statute.

In
claiming the circumstances of the collision were relevant to
his situation, Gutierrez cites to a number of Arizona cases
interpreting a previous statute criminalizing assault with a
deadly weapon. Under that previous statute, “a
conviction of assault with a deadly weapon in which the
alleged weapon is an automobile” required
“evidence that the vehicle was ‘aimed' at the
victim with the actual intent to use the automobile as a
deadly weapon.” State v. Reim, 549 P.2d 1046,
1048 (1976) (citing A.R.S. § 13-249(A)). Gutierrez
claims he did not “aim” his vehicle at the
victim, meaning he could not have been guilty of assault. But
the statute Gutierrez relies on was repealed as of October
1978. The current aggravated assault statute does not require
evidence of aiming one's vehicle. Instead, as pointed out
by the Arizona Court of Appeals in Gutierrez's
post-conviction relief proceedings, turning in front of
another vehicle and causing a collision can be sufficient to
support an aggravated assault conviction. Thus, all of
counsel's alleged failures in connection with
Gutierrez's flawed legal theory were not, in fact,
failures. It was neither deficient performance nor
prejudicial for Gutierrez's counsel to not pursue a
meritless legal theory based on a repealed statute.

Gutierrez's
second and third claims are based on the state court and
prosecutor inducing Gutierrez to plead guilty by lying to him
about the circumstances of the collision. Gutierrez explains
the court and prosecutor both described the relevant events
as Gutierrez hitting the victim's vehicle, instead of the
victim's vehicle hitting Gutierrez's. Claiming the
court and prosecutor mislead him appears to be an attempt by
Gutierrez to establish his guilty plea was not voluntary.
See Little v. Crawford, 449 F.3d 1075, 1080 (9th
Cir. 2006) (discussing requirements for knowing and voluntary
guilty pleas). Gutierrez did not present these claims to the
state courts. Therefore, these claims are unexhausted and the
Court need not address them.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Even if
the Court were to consider these claims on the merits,
Gutierrez is not entitled to relief. See Cassett v.
Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (pursuant to
28 U.S.C. § 2254(b)(2), “a federal court may deny
an unexhausted petition on the merits only when it is
perfectly clear that the applicant does not raise even a
colorable federal claim”). Gutierrez's guilty plea
claims are similar to his ineffective assistance of trial
counsel claim in that they are based on Gutierrez's
belief that the precise circumstances of the collision were
relevant to his decision to plead guilty. As set out above,
that belief is based on a misunderstanding of the governing
aggravated assault statute. Moreover, while the state court
or prosecutor may have described the collision in slightly
inaccurate terms at times, during the hearing where Gutierrez
entered his guilty plea ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.